The next HEAL Seminar will be held on Wednesday, 22 April 2015, from 4pm in Room 04/4053. Sam Walker (University of Manchester) will be speaking on The Sword of Damocles: Criminal Law’s Shadow Over Contemporary Body Modification Practices.All welcome. Any questions: please email heal@soton.ac.uk.

ABSTRACT

I seek to demonstrate that the formal legal system is in conflict with the contemporary social practice of body modification. I will show that the social practice of body modification meets the definition of a convention as stated by David Lewis to which two attendant secondary conventions exist; one relating to the conduct of law enforcement agents and the other relating to the role of medicalisation. This leads, I will argue, to the existence of two conflicting normative systems which have only avoided conflict due to the presence of the two secondary conventions (primarily the one relating to enforcement). As a result of the potential for conflict between these two systems, due to the expansion of body modification techniques and technology, one or the other of them should be amended. I argue that the law concerning assault should be amended to explicitly permit body modification as a lawful activity.

David Gurnham (HEAL and ICJR, University of Southampton) has recently completed an ESRC-funded series of seminars in collaboration with colleagues at the University of Manchester (Catherine Stanton and Hannah Quirk) focusing on the criminalization of disease transmission. Their final summary report is now completed and will be available via the HEAL and ICJR websites, and direct from this link: Criminalizing Contagion_summary_report_Nov_2014. The seminars, which took place at the Universities of Southampton and Manchester from January 2012 until September 2014 addressed a series of questions: how should the law treat a person who transmits a serious infection such as HIV, or exposes others to the risk of infection? For example, should such a person be treated as a criminal, in the same way as someone who injures another?

In this seminar series, we have tried to highlight and explore some of the most pressing implications that the deprivation of a person’s liberty in response to infectious disease transmission has for a number of professional and public organisations. While we did not identify any one view on criminalization, we heard and read strong criticism of the use of criminal sanctions in this context, as well as defences of criminal sanctions in some circumstances.

As well as academic scholars approaching the subject from criminal law and criminal justice, healthcare and ethics perspectives, the seminars establish a link with four key organizations, all of which are involved in one or more of relevant policy engagement, legal reform and clinical practice. These are Amnesty International, the British Association for Sexual Health and HIV (BASHH – an organization made up of professionals working in sexual health), the Crown Prosecution Service (CPS) and the Law Commission. With the exception of Amnesty, we have had representations from each of them, alongside participants across a range of other relevant organizations and institutions at the seminars.

A number of different sorts of publications have arisen from the seminars: academic papers presented at the seminar have been or will soon be published across a number of formats (special journal issues, a book of collected essays); article contributions by practicing medical and healthcare experts have been published in response to a call for papers in three British Medical Journal Group journals; papers have been published by David Gurnham and Catherine Stanton in response to the themes explored in the seminars. For full details of publications and paper presentations, see the Criminalizing Contagion_summary_report_Nov_2014.

According to recent news reports, the city of Edinburgh is getting tough on those who seek sensual pleasures outside of the confines of their own homes. The police have asked that condoms be banned from saunas as a way of trying to prevent sexual activity on the premises, and city Councillors have been asked to stop issuing licenses for saunas and massage parlours.

Besides being a naïve and impractical way to prevent people from having sex, there has been, unsurprisingly, a strong condemnation of such a move on the grounds of its potential negative effect on public health. The charity Scot-pep, for instance, has warned that implementing the police proposal on condoms could lead a HIV epidemic, as well as the proposal to limit establishments where sex workers can meet clients puts them at greater risk from some of the inherent hazards of plying their trade outdoors.

There has been a long history in the United Kingdom of a connection between the criminal justice system and public health. In some cases, it has been a beneficial relationship in which everything from firearms restrictions, requirements for seat belts, motorcycle helmets and child safety seats and restrictions on intoxicating substances, provide examples where the criminal justice system has been used to mitigate or prevent behaviours that are harmful to individual and population health. Nevertheless, not all intersections of criminal justice and public health are mutually beneficial. What is most notable is the distinct progression that has been made from a so-called “policing model of public health”, that often focused on ideas of moral hygiene and legal moralism, which remained influential in Britain into the 19th century, towards more social models of public health that focus on health promotion, harm reduction and social justice.

The recent proposals in Edinburgh reveal a conflict that can arise when approaching a social problem through a criminal justice lens rather than one of public health. Even with a greater focus on individual and population health that shies away from ideas of moral hygiene and legal moralism, there remain important tensions between criminal justice and public health concerns – especially in cases where it concerns sex and sexuality. What is needed is an approach in which the criminal law – as well as other areas of law – is used as a public health tool that seeks to promote health and well-being, as opposed to being used to punish individuals’ choices we find distasteful or undesirable.

HEAL has a strong interest in public health ethics and law. Two of its core members (A.M. Viens and John Coggon) were editors of a volume that was published this month by Cambridge University Press entitled, Criminal Law, Philosophyand Public Health Practice. Bringing together international experts from a variety of disciplines, including law, criminology, public health, philosophy and health policy, it explores the theoretical and practical implications of how the use of criminal law may promote or hinder public health goals.

On 7 May, Jonathan Montgomery gave the inaugural HEAL annual lecture on 'Bioethics As A Governance Practice'. It was a stimulating and engaging lecture which has set the standard for HEAL's annual lecture series.